ACTIVE LINK COMMUNICATIONS, INC.
FORM 8K
EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Agreement is entered into October 18, 2001, between Timothy Ells
("Ells") and Active Link Communications, Inc., a Colorado corporation (the
"Company").
WHEREAS, Ells is a director of, and the owner of all the issued and
outstanding shares of stock of Mobility Concepts, Inc., a Wisconsin corporation
("Mobility Concepts"), into which ALCI Acquisition Corp., a Colorado corporation
("ALCI"), is being merged, pursuant to that Amended and Restated Agreement,
dated October 18, 2001, by and among the Company, ALCI, Mobility Concepts, Ells
and James Ciccarelli, (the "Merger Agreement").
WHEREAS, upon the consummation of the transactions set forth in the
Merger Agreement, the Company desires to employ Ells, and Ells agrees to be
employed by the Company, upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the obligations and promises
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree to the following terms and conditions:
1. Employment. The Company hereby employs Ells as President and Chief
Executive Officer of the Company, and Ells agrees to accept employment as
President and Chief Executive Officer of the Company, on the terms set forth in
this Agreement.
2. Duties and Responsibilities. The duties and responsibilities of the
President and Chief Executive Officer of the Company, shall include, but not be
limited to (a) the day to day operation of the Company and any entity controlled
by or under common control of the Company ("Affiliate"), (b) the development,
identification and implementation of a strategic business plan for the Company
and each Affiliate thereof, and (c) the hiring, promotion and termination of all
officers and employees of the Company and each Affiliate thereof. Ells
acknowledges and agrees that from time to time additional duties may be assigned
thereto by the Board of Directors of the Company in order to accommodate
changing circumstances and needs of the Company and each Affiliate thereof.
During the Term of this Agreement, Ells agrees that he will devote his full time
and attention to the business affairs of the Company and each Affiliate thereof,
and shall perform assigned duties diligently, in good faith, and to the best of
his ability.
3. Employment Term and Termination. The term of employment hereunder
shall commence as of the date of the Closing Date set forth in the Merger
Agreement and shall continue for a period of one (1) year, subject to earlier
termination as provided herein (the "Term"). THE TERM WILL BE AUTOMATICALLY
EXTENDED FOR ADDITIONAL SUCCESSIVE ONE (1) YEAR PERIODS BEGINNING ON EACH
ANNIVERSARY OF THE CLOSING DATE UNLESS ELLS OR THE COMPANY PROVIDES THE
NON-TERMINATING PARTY WITH NOT LESS THAN THIRTY (30) DAYS PRIOR
WRITTEN NOTICE THAT SUCH PARTY DOES NOT WISH TO EXTEND THE TERM, IN WHICH CASE
ELLS' TERM OF EMPLOYMENT HEREUNDER WILL TERMINATE AT THE END OF THE TERM THEN IN
EFFECT.
4. Termination. Ells' employment with the Company may be terminated
only under the circumstances described in Sections 4(a) through 4(g) hereof:
(a) Death. Ells' employment hereunder will automatically
terminate upon his death.
(b) Disability. If Ells is Disabled for any continuous one
hundred eighty (180) days during any (12) twelve continuous month period, the
Company may terminate Ells' employment with the Company. For purposes of the
Agreement, Ells shall be deemed to be "Disabled" if he has a physical or mental
disability that renders him incapable, after reasonable accommodation, of
performing his duties under this Agreement. In the event of a dispute as to
whether Ells is Disabled, the Company may refer the same to a licensed
practicing physician mutually agreed to by Ells and the Company, and Ells agrees
to submit to such reasonable tests and examination as such physician shall deem
appropriate. The determination of said licensed practicing physician shall be
determinative.
(c) Cause. The Company may terminate Ells' employment
hereunder at any time for Cause. For purposes of this Agreement, the term
"Cause" shall mean: (i) the perpetration by Ells of a fraud or crime against the
Company or any affiliate thereof, (ii) Ells' conviction of a crime involving
moral turpitude, or (iii) Ells' continual gross dereliction and willful
abandonment of his duties and responsibilities owed to the Company, which gross
dereliction and willful abandonment materially and adversely affect the
financial condition or business operations of the Company.
(d) Termination by Company for Good Reason. The Company may
terminate Ells' employment hereunder at any time after the expiration of the
second (one-year) Term of the Agreement for Good Reason. For purposes hereof,
"Good Reason" means:
(i) the material failure by Ells to perform his duties
hereunder, (other than any such failure resulting
from Ells' illness or incapacity) that is not cured
within thirty (30) days after Ells' receipt of a
Notice of Termination relating to such failure; or
(ii) insubordination, disloyalty to the Company or
disparagement of the Company by Ells which, in any
such case(s), individually or collectively,
materially and adversely affects the financial
condition, business operations or reputation of the
Company, and that such is not cured within thirty
(30) day after Ells' receipt of a Notice of
Termination relating to such failure.
(e) Termination by Ells Not for Good Reason. Ells may
terminate his employment hereunder at any time for any reason by giving the
Company prior written Notice of Termination, which Notice of Termination shall
be effective not less than thirty (30) days after it is given to the Company,
provided that nothing in this Agreement shall require Ells to specify a reason
for any such termination.
2
(f) Termination by Ells for Good Reason. Ells may terminate
his employment hereunder at any time for Good Reason by giving the Company prior
written Notice of Termination, which Notice of Termination shall be effective
not less than thirty (30) days after it is given to the Company, provided that
such Notice of Termination specifies in reasonable detail the Good Reason giving
rise to such termination. For purposes hereof, "Good Reason" means:
(i) a material diminution of the aggregate duties and
responsibilities of President and Chief Executive
Officer of the Company;
(ii) any removal of Ells from, or any failure to designate
Ells to, the position of President and Chief
Executive Officer of the Company; or
(iii) request by the Company that in connection with his
employment thereby that Ells relocate outside of the
Chicago, Illinois area.
(g) Mutual Agreement. This Agreement may be terminated at any
time by the mutual agreement of the parties. Any termination of Ells' employment
by mutual agreement of the parties must be set forth in a written agreement
signed by Ells and a member of the Board of Directors of the Company.
(h) Notice of Termination. Any termination of Ells' employment
by the Company or Ells (other than a termination pursuant to mutual agreement or
death) must be communicated by a written Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice of Termination" means a
dated notice which indicates the specific termination provision in this
Agreement relied on and which sets forth in reasonable detail the facts and
circumstances, if any, claimed to provide a basis for termination of Ells'
employment under the provision so indicated.
(i) Date of Termination. "Date of Termination" means the last
day Ells is employed by the Company, provided that Ells' employment is
terminated in accordance with the foregoing provisions of this Section 4.
5. Rights Upon Termination.
(a) In the event that Ells' employment with the Company is
terminated pursuant to Section 4(b), 4(c), 4(d), 4(f) or 4(g), Ells shall be
entitled to a lump sum payment (payable no later than fourteen (14) days after
the Date of Termination) for: (i) any unused vacation days and any other accrued
benefits to which Ells is entitled, as determined in accordance with Company
policy as in effect from time to time, and (ii) an amount sufficient to pay his
COBRA payments for a period of eighteen (18) months.
(b) In the event of Ells' termination pursuant Section 4(b),
4(d), 4(f) or 4(g) of this Agreement, Ells shall also be entitled to receive a
lump sum payment in the amount equal to one year's base salary as severance
benefits, in exchange for his execution of an agreement
3
not to compete with the Company for a period of one year following the Date of
Termination. Ells' lump sum payment shall be paid as soon as practicable (and in
no event later than fourteen (14) days) after Ells' signing of such a
non-compete agreement.
6. Compensation.
(a) Base Salary. Ells' base salary shall initially be
$200,000.00 annually and shall be reviewed and adjusted (upward only) from time
to time by the Company in accordance with its salary and wage policies (the
"Base Salary"). In no event shall the Base Salary be adjusted upward in an
amount less than the current year's CPI multiplied by the Base Salary for the
immediately preceding year. The Company shall pay Ells his Base Salary in
accordance with the Company's regular payroll practices, but not less frequently
than monthly.
(b) Bonus. Ells shall receive a discretionary annual bonus
based upon the performance of the Company, to be awarded at the sole discretion
of the Board of Directors of the Company. Ells shall also participate in any
incentive or bonus plans established by the Company for the officers and
employees thereof in accordance with the terms of those plans.
(c) Employee Benefits. During the Term, Ells and Ells' family
and dependents shall be entitled to all such employment benefits as may, from
time to time, be made generally available to the Company's senior managers and
their families and dependents, including, without limitation, retirement plans,
medical health, dental and other similar insurance, and vacation; provided,
however, that such benefits and arrangements are made available to such senior
managers in the Company's sole discretion and are subject to Ells' and Ells'
family's qualification for benefits under each such plan. Nothing in this
Agreement establishes any right of Ells or Ells' family to the availability or
continuance of any such plan or arrangement, each of which may be terminated,
altered, amended or modified at any time on a non-discriminatory basis, in the
Company's sole discretion. In addition to those employment benefits generally
available to the Company's executives, the Company shall provide Ells with (i)
reimbursement of up to $7,500 per year of any amounts paid by Ells as premiums
for life and disability insurance, (ii) a car allowance equal to $650 per month
and (iii) reimbursement of club dues and other business expenses not to exceed
$10,000 per year. Amounts not expended in any one category may be applied to
expenses in any other category at Ells' election.
(d) Business Related Expenses. Upon presentation of vouchers
and similar receipts, Ells shall be entitled to receive prompt reimbursement in
accordance with the policies and procedures of the Company maintained from time
to time for all reasonable business expenses actually incurred in the
performance of his duties hereunder.
(e) Vacation. Ells shall be entitled to four (4) weeks paid
vacation for each fiscal year (prorated for any partial year) during the
duration of the Agreement at times selected by Ells.
(f) Office Facilities. Ells shall be furnished with offices in
Naperville, Illinois and at such other locations as he and the Board of
Directors shall mutually agree upon, and with such support and other facilities
as Ells and the Company agree are necessary for Ells to perform his duties under
the Agreement.
4
7. Indemnification. The Company and any Affiliate shall
indemnify Ells if Ells was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding (including an
action by the Company or any Affiliate), whether civil, criminal,
administrative, or investigative, and whether formal or informal, by reason of
(or, in the case of an action by the Company or an Affiliate, to procure a
judgment in the Company's or an Affiliate's favor by reason of) the fact that
Ells is or was a director, officer, employee, executive or agent of the Company
or an Affiliate, or, is or was serving at the request of the Company or an
Affiliate as a director, officer, partner, trustee, executive, employee or agent
of another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, whether for profit or not for profit, against expenses,
including attorneys' fees, judgments, penalties, fines (criminal or civil) and
amounts paid in settlement actually and reasonably incurred by Ells in
connection with such action, suit or proceeding, to the fullest extent and in
the manner permitted by Illinois law, regardless of any indemnification or
similar provision in the By-laws or Articles of Incorporation of the Company or
any Affiliate. Expenses incurred by Ells in defending any threatened or pending
action, suit or proceeding shall be paid by the Company in advance of the final
disposition of any such action, suit or proceeding, upon receipt of an
undertaking by or on behalf of Ells to repay such amount, in the event it is
ultimately determined that Ells is not entitled to be indemnified by the Company
in accordance with this Agreement.
8. Severability. In the event that any provisions of this
Agreement are found or held to be invalid or unenforceable, the remaining
provisions of the Agreement shall nevertheless continue to be valid and
enforceable as though the invalid and unenforceable parts had not been included
herein and such determination shall not bar or affect the Company's right to
obtain relief based on the remaining provisions of this Agreement. Each
provision of this Agreement, for this purpose, is severable and independent of
every other provision.
9. Applicable Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Illinois.
10. Integration. This Agreement constitutes the complete
agreement between the parties concerning the matters referred to herein. The
parties acknowledge that no statement, promise or representation has induced
them to sign this Agreement other than those contained herein. No amendment or
modification of this Agreement shall be effective unless it is in writing and
signed by Ells and a member of the Board of Directors of the Company.
11. Headings and Capitalized Terms. The headings contained in
this Agreement are inserted for convenience only and are not to be considered in
construction of the provisions herein. Any and all capitalized terms used herein
and not otherwise defined herein, shall have the meaning set forth in the Merger
Agreement, as it may be amended from time to time.
12. Binding Effect. This Agreement shall survive a change of
control or sale of the Company or any of its subsidiaries, and shall be binding
upon and inure to the benefit of, and shall be enforceable by and against, the
Company and its successors and assigns, and Ells and his heirs, beneficiaries
and legal representatives. It is agreed that Ells may not delegate or assign his
rights and obligations under this Agreement.
5
WHEREFORE, the parties have executed this Agreement as of the
date first stated above.
TIMOTHY ELLS, an individual ACTIVE LINK COMMUNICATIONS, INC.,
a Colorado corporation
/s/ Timothy A. Ells By: /s/ James M. Ciccarelli
- ---------------------------------------- --------------------------------
Its: Chairman
-------------------------------
Date: 10/18/01 Date: 10/18/01
---------------------------------- -------------------------------
6